Smt. Turabai Gafoor vs Smt. Goyandmina

D.K. Deshmukh, J.—By this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 21.2.1983 passed by the 6th Extra Assistant Judge, Pune in Civil Appeal No. 437/1981. The Appellate Court has allowed the appeal filed by the respondents and set aside the judgment and decree passed by the Small Causes Judge, Pune, in Civil Suit No. 1101/1978. Civil Suit No. 1101/1978 was filed by the petitioner claiming to be the landlady of the suit premises of which one Munuswami, of whom the respondents are the legal representatives, was the tenant. The suit premises are one room in House No. 249, Old Bazar, Kirkee, Pune. The decree of eviction was sought by the petitioner against the tenant on the ground that the tenant had committed default in payment of rent and that the petitioner requires the suit premises bonafide for her own occupation. The trial court decreed the suit on both the grounds. However, the appellate court allowed the appeal and set aside the judgment and decree passed by the trial court.

Shri Pungaliya, learned Counsel appearing for the petitioner urged only one point before me, namely that the appellate court was not justified in reversing the finding recorded by the trial court on the question of bona fide need. He urged that there are 18 members in the family of the petitioner and therefore, even if the finding of the appellate court that she has 3 rooms in her occupation is accepted, then also in the submission of Shri Pungaliya, the finding that she does not bona fide need the suit premises for her own occupation cannot be sustained. There is some force in the contention of Shri Pungaliya that when the number of members in the family of the petitioner is 18, the accommodation available with her is insufficient. However, a landlord is not entitled to a decree of eviction merely by establishing that he needs the premises for his bona fide occupation; he has also to satisfy the court about comparative hardship. Considering the aspect of comparative hardship, the appellate court has held that, if the decree is passed, hardship suffered by the tenant will be greater. The appellate court has observed that the trial court has stated in its judgment that the tenants can shift to the premises at Kirkee Bazar which admittedly are shop premises. It is to be seen that the petitioner is the only witness examined on behalf of the plaintiff and she has led absolutely no evidence on the point of any other accommodation available to the tenants. Therefore, I see no reason to disturb the finding of the appellate court on the question of comparative hardship. Considering that this is a petition filed under Article 227 of the Constitution of India wherein the findings recorded by the courts below can be disturbed only in case the High Court finds that the order has resulted in failure of justice. Considering that there are 18 members in the family of the tenant and that they have no other residential accommodation available to them, I do not think that the appellate court committed any grave error in holding that in case decree is passed, the tenants will suffer greater hardship .

In the result, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.